UNITED STATES of America, Plaintiff-Appellee, v. Edier TENORIO, Defendant-Appellant, 69 F.3d 1103

DYER, Senior Circuit Judge: Edier Tenorio (“Tenorio”) appeals his conviction claiming the district court erred in permitting the prosecutor to use post-Miranda silence to suggest guilt and impeach his testimony. We reverse. Tenorio was charged with importation and possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 952(

a) and 841(a)(1). The three day trial commenced with the government presenting evidence that Tenorio arrived at Miami International Airport on an American Airlines flight from Panama. His manner and dress caught Inspector Richard Skirko’s attention in the customs inspection area. Observing an expensive “piggyback” suitcase, Skirko stopped Tenorio at 6:05 p.m. because in his experience drugs were sometimes concealed in that particular style of Samsonite luggage. Skirko searched the suitcase at approximately 6:20 p.m. and immediately realized the sides were much thicker than normal.

Within a few seconds of opening it, the inspector detected an odor of fiberglass resin, which he knew was frequently used to construct false compartments. His suspicions aroused, Skirko continued the search by punching a hole in the side of the suitcase with a screwdriver, which released a white powder. A field test at 6:25 p.m. confirmed the powder was heroin. Ten-orio was advised of the test results and arrested. Although the record does not reveal when Tenorio was actually read his Miranda rights, the prosecutor proffered that information to the district court.

According to the proffer, after being advised of his rights, Tenorio said he “wanted to think about it,” which he did for fifteen or twenty minutes. The record does show that Tenorio signed a statement at 6:35 p.m. declaring that he did not intend to waive his rights. It appears from the proffer, therefore, that Skirko read Tenorio his rights sometime around 6:20 or 6:25 p.m. The inspector remained on the scene until 6:40 p.m. verifying the amount of heroin seized. Inspector Skirko testified Tenorio did not appear to be shocked when he learned of the heroin.

According to the inspector, after being arrested for importing narcotics, he “continued just to look unhappy, but not surprised.” Tenorio testified he did not see Skirko probe the suitcase with a screwdriver, or test the powder. He said he wanted to explain to Skirko that the suitcase had been loaned to him, but kept quiet because he had been told that everything he said would be used against him. D.E.A. Agent Victor Broughton took custody of Tenorio sometime after he refused to waive his rights and they left for the county jail at about 7:00 p.m.

Broughton saw Teno-rio twenty two hours later, at his initial court appearance, where Tenorio volunteered that “he didn’t know anything about the narcotics; that some unidentified [cab driver] had approached him at the hotel and offered to loan him a suitcase because his suitcase was so worn, tattered.” Broughton testified on direct examination that that was the first time he heard any explanation from Tenorio about the heroin.

Defense counsel moved for a mistrial asserting it was improper for the prosecutor to have elicited Broughton’s testimony, which had indirectly touched on Tenorio’s invocation of his right to remain silent. The government contended that evidence that Teno-rio’s voluntary statement was contradicted by his words or actions before the Miranda warnings was admissible. The government also argued it was permissible to contrast Tenorio’s silence prior to receiving Miranda warnings with his statement to show that Tenorio had concocted a story while in jail to explain the heroin in his luggage.

The court ruled the government could only elicit testimony concerning Tenorio’s pre-Miranda statements and the exculpatory statement made at his initial court appearance. Concluding that no improper testimony had yet been received, the court denied the motion for mistrial but admonished the prosecutor not to ask any questions implying that Teno-rio had invoked his right to remain silent. The court also precluded any testimony of the twenty two hour delay between Tenorio’s ride to the jail with Agent Broughton and his exculpatory statement.

The government presented its theory, in part, through the direct examination of Skir-ko and Broughton. In short, Tenorio’s silence, as the government saw it, was proof of his guilt. The prosecutor developed this theory for the jury by urging them to consider that Tenorio offered Skirko no explanation during the inspection because he fabricated the story about the cab driver.

She argued, “If it were true that [Tenorio was] an innocent courier, he would do what any normal person would do when the drugs were found, he would have [explained the drugs were not his].” The prosecutor concluded her summation to the jury on this point as follows: We would suggest to you ... that an innocent courier, when he was found in the airport to have drugs concealed in his luggage, would at that point say something if he had an explanation.

He would be shocked, he would be horrified, and he would give the law enforcement agent an explanation of how [ ] he had gotten this suitcase, that he was not in fact the guilty party, that someone else must have put [the heroin] in. He didn’t do that, although he was in Inspector Skirko’s presence for half an hour.... And it is our suggestion to you that what happened is this. That Mr. Tenorio, overnight, in the jail simply thought [the story] up....

And so the next day, although no one in the court called upon him to give an explanation for the acts with which he was charged, he immediately volunteered [one] because he now had a story to give. Defense counsel raised an objection to these comments, which the court again overruled because it understood the arguments were directed to Tenorio’s pre-Miranda silence. It is well established that after Miranda warnings have been given, the government cannot fairly use a defendant’s silence against him at trial as evidence of guilt. Wainwright v.

Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986) (silence cannot be used as affirmative proof of a fact in issue); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (Fifth Amendment prohibits prosecutorial comment on defendant’s silence); United States v. Rivera, 944 F.2d 1563 (11th Cir.1991) (silence cannot be used as evidence of guilt). Furthermore, Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and its progeny, see, e.g., Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) and Jenkins v.

Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), mandate that a defendant’s exculpatory testimony cannot be impeached by his gost-Miranda silence on the ground that he did not give an explanation for his conduct at the time of arrest. In Doyle, the defendants took the stand and offered an exculpatory explanation for their participation in a drug transaction. On cross-examination, the prosecution impeached their testimony by asking why they had not explained their conduct upon arrest.

The Supreme Court held that such cross-examination was fundamentally unfair, and thus violated the Due Process clause of the Fourteenth Amendment, for two reasons. First, a defendant’s silence, being “insolubly ambiguous,” has low probative value. 426 U.S. at 617, 96 S.Ct. at 2244. Second, Miranda warnings carry the implicit assurance “that silence will carry no penalty.” Id. at 618-19, 96 S.Ct. at 2245.

When Tenorio objected to the government eliciting evidence of his silence, the prosecutor made clear to the court the purpose of Agent Broughton’s examination was to suggest that Tenorio had lied, and that he was guilty because if his story was true, he would not have waited twenty two hours before telling it. The prosecutor drove the point home to the jury in the closing argument quoted above. In addition, she highlighted Skirko’s testimony for the jury that Tenorio was not shocked at being arrested.

On this point she argued that he “volunteered no explanation as any reasonable innocent person would do when confronted with that situation.” The admission of Broughton’s testimony and the prosecutor’s comments during closing argument violated Tenorio’s Fifth Amendment right to remain silent and right to due process. The government erred by violating the implied assurance in the Miranda warnings that silence will carry no penalty. The district court erred in finding that the evidence and argument were directed only at gre-Miranda silence.

Neither the testimony in question, nor the prosecutor’s arguments drew any time distinctions for the jury. In fact, the prosecutor may well have confused the jury by referring to a half hour period that Tenorio spent with Inspector Skirko, which necessarily included a period of time after Tenorio refused to waive his right to remain silent. Furthermore, there were no curative or limiting instructions given to assist the jury. Thus, the jury could have impermissibly convicted solely on the basis of Tenorio’s post-Miranda silence.

When the use of a defendant’s silence results in a constitutional violation, the conviction can stand only if the reviewing court is satisfied beyond a reasonable doubt that the error was harmless. Matire v. Wainwright, 811 F.2d 1430, 1436 (11th Cir.1987). In United States v.

Meneses-Davila, 580 F.2d 888 (5th Cir.1978), the court outlined three categories into which prosecutorial comment on a defendant’s silence may fall, one of which applies to the present case: When the prosecution uses defendant’s post-arrest silence to impeach an exculpatory story offered by defendant at trial and the prosecution directly links the implausibility of the exculpatory story to the defendant’s ostensibly inconsistent act of remaining silent, reversible error results even if the story is transparently frivolous. Id. at 893 (citation omitted).

Comments on post-arrest silence do not always fit neatly into a category and determinations of harmlessness must be made on a “case-by-ease basis.” Id. at 890. The reviewing court must examine the facts, the trial context of the error, and the prejudice created thereby as juxtaposed against the strength of the evidence of defendant’s guilt. Id. The government’s direct evidence in support of its theory needs no further discussion. In cross-examination, the government elicited directly from Tenorio that he did not offer his explanation to the agents because he was exercising his constitutional right of silence.

The prosecutor’s argument directly linked the implausibility of Tenorio’s exculpatory story to his ostensibly inconsistent act of remaining silent. Although the egregious and intentional use of silence to infer guilt is sufficient to warrant reversal, see Matire, 811 F.2d at 1433 & n. 2, several other factors influence our decision. Tenorio’s silence was the touchstone of the government’s case-in-chief, its cross-examination of the defendant, and its closing argument during this trial of short duration.

The errors thus pervaded the trial, which amplified the importance of Tenorio’s silence as a piece of evidence to be used to decide not only his credibility, but his guilt. See Velarde v. Shulsen, 757 F.2d 1093 (10th Cir.1985) (per curiam) (“where the case comes down to a one-on-one situation, i.e., the word of the defendant against the word of the key prosecution witness ... the importance of the defendant’s credibility becomes so significant that prosecutorial error [in] attacking that credibility cannot be harmless beyond a reasonable doubt”).

Furthermore, the extremely prejudicial and improperly admitted evidence of Tenorio’s silence could reasonably have been the basis for the guilty verdict. See Stano v. Dugger, 901 F.2d 898, 903 (11th Cir.1990) (en banc) (harmful error demonstrated in part by jury’s inability to reach verdict). Not being satisfied beyond a reasonable doubt that the errors were harmless, we REVERSE the conviction and REMAND for a new trial. . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). .

In total, the suitcase concealed approximately 1,548 grams of ninety three percent pure heroin, which had a wholesale value of $225,000 and a street value of $3 million. . Broughton's testimony and the discussion in closing argument of the entire time Tenorio was with Officer Skirko involve Tenorio's post-Miranda silence, so constitutional error — which is not harmless — is present in this case. Tenorio is due a new trial. .

That this may have been the case is supported by the fact that after several hours of deliberating the jury deadlocked before returning a guilty verdict. .Decisions rendered prior to the close of business on September 30, 1981 by the former Fifth Circuit are binding precedent on this court. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981). . In view of our disposition of the appeal on the post-Miranda silence issue, it is unnecessary to reach the other errors asserted by Tenorio.